The Prison Rape Elimination Act Overview and Update

Responding to Inmate on Inmate

Sexual Violence

The Prison Rape Elimination Act of 2003 Public Law 108-79

Makes important findings about the impact of prison rape on inmates, the economy and state and federal governments

PREA Purposes

Increase accountability of prison officials who fail to detect, prevent, reduce and punish prison rape

Protect 8thamendment rights of federal, state and local prisoners

Establish grant programs Reduce costs of prison rape on interstate

commerce

PREA Purposes

Establish zero tolerance for the conduct Make prevention a top priority Develop national standards for detection,

prevention, reduction and punishment Increase available data and information on

incidence in order to improve management and administration

Standardize definitions used for collecting data on the incidence of rape

Major Provisions

Section 4: Collection of prison rape statistics, data and research– Federal, state and local officials are required to

participate– Review panel on prison rape with subpoena

power– Public hearings for 3 highest incidence systems

and 2 lowest – Report each year on 6/30

BJS Update

Expert panel meetings Administrative survey collections Victim self reports

– Adults – Youth-Began collection of self-reporting (March

2008) Major tests of tools for evaluation of

victimization rates for former inmates

BJS Update

Collection of Lock-ups sample Rankings

– Prisons-December 2007– Jails-June 2008– Lock-ups-2008

Major Provisions

Section 5: Prison Rape Prevention and Prosecution – Information and Assistance through

clearinghouse – Training and education– Report due on 9/30 annually

NIC Update

Completion of informational PREA videos PREA videoconferences Nationwide technical assistance and training

on PREA Correctional Officer Handbook

NIC Update

Development of curricula – Addressing sexual violence against youth in

custody– Responding to inmate-on-inmate sexual violence– Investigating sexual violence in correctional

settings

Development of legal tool kits for states Development of E-Learning tool

Major Provisions

Section 6: Grants to Protect Inmates and Safeguard Communities

Protection of the community$ to address overcrowding

Risk assessment toolsMapping of concentration of inmates in

communitiesPolicy and program developmentCollaboration between corrections and

community on reentry

Major Provisions

Section 6: Grants to Protect Inmates and Safeguard Communities – Protection of Inmates

InvestigationsProsecution Prevention

BJA Update

Convened meetings to discuss protecting inmates and community safety

16 states were awarded grants in 2004 28 awards in 2006

State Grant Awards

Training Improve or create investigative structures Develop data collection capacities Enhance security by installing cameras or

identifying institutional vulnerabilities Develop classification and housing options

for victims and perpetrators

State Grant Awards

Enhance medical and mental health treatment for victims

Community reintegration and services for victims and perpetrators

Hiring staff to implement PREA

BJA Update

Work with Prosecutors Training Curriculum for Jails and Lockups Community Corrections Materials for Tribal/ Native American

jurisdictions Problems and responses to PREA

NIJ Update

Policies and practices looking at male and female prison facilities

Assessment tools and Instruments and descriptive analysis of characteristics of perpetrators and victims

The culture of prison sexual violence Looking at classification and risk assessment

NIJ Update

Impact of victimization Several awards were made on sexual

violence in jail settings 2008 Research Solicitation

– Focus on Staff Sexual Misconduct Cross Gender Supervision Pat searches Investigations and Prosecution Best Practices and evaluation of current policies

Major Provisions

Section 7: National Prison Rape Elimination Commission

– 9 members authorized (8 sitting)– Conduct legal and factual study of the effects of

prison rape in the US– Report due w/in 2 years of initial meeting

Major Provisions

Section 7: National Prison Rape Elimination Commission – Recommend national standards– Consultation with accreditation organizations– Can’t impose something that would mandate

substantial increased costs to agency– Hold hearings

NPREC Update www.nprec.us

Expert Panels begun in 2007– training, medical and mental health, reporting and

data collection, classification, investigations, evidence and crime scene collections, immigration, juveniles

Major Provisions

Section 8: Adoption and Effect of National Standards– A year after National Prison Rape Elimination

Commission issues report, AG publishes a final rule with standards

– 90 days after publication --transmission to state departments of correction

– FBOP is immediately covered by rule– Possible reduction of 5% each year for failure to

meet the standard– Annual report on non-compliance

Major Provisions

Section 9: Accreditation organizations must adopt standards or lose federal funds

What does this mean?

Increased scrutiny at state, federal and local level on prison rape generally and staff sexual misconduct specifically as a subset

Broadened concern about offender on offender conduct

Data collection is important Enhanced focus on investigations, prosecution and

administrative sanctions Set of national standards that establish minimum

standards for treatment of prisoners domestically

Legal Liability for Sexual Abuse of Persons in Custody: Civil and Administrative

Responding to Inmate on Inmate

Sexual Violence

State Laws

Staff sexual misconduct* Sexual assault Statutory rape Sodomy Sex offender registration Vulnerable Adult Statutes Licensing Official misconduct Obstruction of Justice Making false statements to a government official Mandatory reporting

State Custodial Sexual Abuse Laws

•All 50 states, the Federal Government and DC have laws specifically covering the sexual abuse of persons in custody

•32 States cover Community Corrections agencies•29 States cover juveniles explicitly– another 17 States implicitly.

Punishing Consensual Sex of inmates

A State’s Sodomy laws constitutional as applied to sex in prisons.

Diminished expectation of Privacy.– US v. Brewer, 363 F. Supp. 606 (M.D. Pa.

1973)– People v. Frazier, 64 Cal.Rptr. 447 (Cal. Ct.

App.1967)– People v.Coulter, 288 N.W.2d 448 (Mich. Ct.

App. 1980)

Civil Liability-Constitutional Claims

Most Common legal bases for challenges

42 USC 1983 8th Amendment 4th Amendment 14th Amendment State tort claims

42 U.S.C. §1983

Causes a federal cause of action for the vindication of rights found elsewhere

Key elements– Deprived or a right secured by the constitution or

law of US– Deprivation by a person acting under color of

state law– Don’t forget volunteers and contractors

Eighth Amendment

Prohibits cruel and unusual punishment Legal standard is deliberate indifference

– Established in a prison rape case Farmer v. Brennan

– Two part testThe injury must be objectively serious and must

have caused an objectively serious injuryThe official must have a sufficiently culpable of

mind and have acted with deliberate indifference or reckless disregard for the inmate’s constitutional rights

What the Courts look for

Deliberate indifference to inmate vulnerability – safety or health– Official knew of and disregarded an excessive

risk to an inmate’s safety or health– Official must be aware of facts from which an

inference could be drawn that a substantial risk of harm exists and he must draw the inference

Fourteenth Amendment—Substantive Due Process

Was the individual deprived of life,liberty or property without due process of law?

Lower legal Standard than 8th amendment Depending on the situation—14th amendment

may apply – pre-trial detainees and juveniles

State Tort Law Claims

Assault Battery Intentional infliction of emotional distress Negligent infliction of emotional distress Negligent hiring, firing, supervision, staff

training

Major Issues

Inmate on Inmate Conduct

– Rape– Sexual – Voluntary sexual interaction– Consensual sex

Inmate on Inmate Conduct

Who raises the issue– Male– Female

Nature of the conduct– Forced– Coerced– Consensual

Liability

Official

Individual

Personal

Official Liability

Did it happen on your watch? Were you responsible for promulgating and

enforcing policy? Did you fail to act or ignore information

presented to you? Was it a FAILURE TO TRAIN, SUPERVISE,

ETC…

Individual Liability

Officials sued in individual capacity may be protected from damages if the wrongful conduct was committed while they preformed a function protected by qualified immunity

Personal Liability

Plaintiff must provide notice that the suit is against the official in his/her personal capacity

Direct participation not required– Actual or constructive notice of unconstitutional

practices– Demonstrated gross negligence or deliberate

indifference by failing to act

Qualified Immunity

No violation of federal law– constitutional or otherwise

Rights and law not clearly established at time of the incident

Official’s action was objectively legally reasonable in light of clearly established legal rules at time of the action—deliberate indifference

LEGAL EXAMPLES